INDIAN BAR ASSOCIATION

(THE ADVOCATES’ ASSOCIATION OF INDIA)

Regional Office: Third Floor, Bansilal Building, 9/15, HomiModi Street,
Fort, Mumbai- 400023, Maharashtra.

Email: indianbarassociation.mah@gmail.com Contact No.+91 7045408191

Date: 22/02/2019

BOMBAY HIGH COURT’S DIRECTION

(18th February, 2019)

APPLICATION UNDER SECTION 340 OF CRIMINAL PROCEDURE CODE

SHOULD BE DECIDED FIRST & WITH SENSE OF URGENCY.

Bombay High Court directs Magistrate to decide proceeding under

section 340 of Criminal Procedure within 2 months in view of law laid

down by Constitution Bench of Supreme Court in Iqbal Singh Marwah

Vs. Meenakshi Marwah (2005) 4 SCC 370.

Mumbai: Date; 18th February, 2019:-

Bombay High Court today directed 64th Metropolitan Magistrate,

Borivali to decide the application under Section 340 of Criminal

Procedure Code within 2 months from the receipt of the order.

While giving such time bound order Bombay High Court considered law

laid down by Constitution Bench of Supreme Court in Iqbal Singh

Marwah Vs. Meenakshi Marwah (2005) 4 SCC 370. Where in para 32

it is ruled that the application under Section 340 of Criminal Procedure

Code should be given precedence over other proceedings and in the

meantime other proceedings be stayed.

32. Coming to the last contention that an effort should

be made to avoid conflict of findings between the

civil and criminal Courts.

While examining a similar contention in an appeal

against an order directing filing of a complaint under

Section 476 of old Code, the following observations

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made by a Constitution Bench in M.S. Sheriff v.

State of Madras MANU/SC/0055/1954 :

[1954]1SCR1144 give a complete answer to the

problem posed :

"(15) As between the civil and the criminal

proceedings we are of the opinion that the

criminal matters should be given

precedence. There is some difference of opinion in the

High Courts of India on this point. No hard and fast rule

can be laid down but we do not consider that the

possibility of conflicting decisions in the civil and

criminal Courts is a relevant consideration. The law

envisages such an eventuality when it expressly

refrains from making the decision of one Court binding

on the other, or even relevant, except for certain limited

purposes, such as sentence or damages. The only

relevant consideration here is the likelihood of

embarrassment.

(16) Another factor which weighs with us is that a civil

suit often drags on for years and it is undesirable that a

criminal prosecution should wait till everybody

concerned has forgotten all about the crime. The public

interests demand that criminal justice should be

swift and sure; that the guilty should be punished

while the events are still fresh in the public mind

and that the innocent should be absolved as early

as is consistent with a fair and impartial

trial. Another reason is that it is undesirable to let

things slide till memories have grown too dim to trust.

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 This, however, is not a hard and fast rule. Special

considerations obtaining in any particular case might

make some other course more expedient and just. For

example, the civil case or the other criminal

proceeding may be so near its end as to make it

inexpedient to stay it in order to give precedence

to a prosecution ordered under S. 476. But in this

case we are of the view that the civil suits should

be stayed till the criminal proceedings have

finished."

In para 32 of the above judgment, Supreme Court referred the law laid

down by Constitution Bench in M.S. Sheriff Vs. State of Madras AIR

1954 SC 397, where Constitution Bench had ruled as under;

14. We are informed at the hearing that the two further

sets of proceedings arising out of the same facts are

now pending against the appellants. One is two civil

suits for damages for wrongful confinement. The other

is two criminal prosecutions under section 344, Indian

Penal Code for wrongful confinement, one against each

Sub-Inspector. It was said that the simultaneous

prosecution of these matters will embarrass the

accused. But after the hearing of the appeal we received

information that the two criminal prosecutions have

been closed with liberty to file fresh complaints when

the papers are ready, as the High Court records were

not available on the application of the accused. As these

prosecutions are not pending at the moment, the

objection regarding them does not arise but we can see

that the simultaneous prosecution of the present

criminal proceedings out of which this appeal arises

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 and the civil suits will embarrass the accused. We have

therefore to determine which should be stayed.

16……Special considerations obtaining in any

particular case might made some other course

more expedient and just.

For example, the civil case or the other criminal

proceeding may be so near its end as to make it

inexpedient to stay it in order to give precedence to a

prosecution ordered under section 476. But in this case

we are of the view that the civil suits should be stayed

till the criminal proceedings have finished.

17. The result is that the appeal fails and is dismissed

but with no order about costs. Civil Suits Nos. 311 of

1951 to 314 of 1951, in the Court of the Subordinate

Judge, Coimbatore, will be stayed till the conclusion of

the prosecution under section 193, Indian Penal Code.

As the plaintiffs there are parties here, there is no

difficulty about making such an order.

Hon’ble Bombay high Court in the case of J.I.K Industries Co.Ltd.Vs. Shri

Maruti Nashik Mene & Ors 2017 SCC OnLine Bom 3477 also stayed the

main proceeding till the enquiry under section 340 of Criminal Procedure Code

is Completed.

Earlier Bombay High Court in Electra Menezes Vs State of Maharahtra

2019 SCC OnLine Bom 62, on 17th January, 2019 had directed

collector, Pune to decide 340 application within 2 months in a

proceedings by bank under SARFAESI Act.

Full Bench of Hon’ble of Supreme Court in Sarvapalli Radhakrishnan

University Vs. Union of India 2019 SCC OnLine SC 51 had also ruled

that the Court are expected to do justice quickly & impartially without

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being influenced by any extraneous Consideration and when false

affidavits are filed action needs to be taken.

In the said case High Court observed that no notice is required to

collector and on the first day of hearing passed the directions to decide

340 in a time bound manner.

In another judgment in the case of Manish Milani vs. Union of India

2018 SCC OnLine Bom 2080, High Court laid down the ratio that

whenever any such allegations of offences against administration of

justice are alleged then it has to be decided first and based on the

enquiry report under Section 340 of Criminal Procedure Code the main

case/petition/suit be decided.

Civil Application for taking action against the

petitioner under Section 340 Cr.P.C. should be

decided first and the writ petition can be decided

on the basis of result of the enquiry under Section

340 Cr.P.C. –

Held, Apex Court in various cases and in the cases of i]

Dalip Singh v. State of Uttar Pradesh (2010} 2 SCC

114], ii] Rameshwari Devi v. Nirmala Devi (2011) 8 SCC

249, and iii] Kishore Samrite v. State of Uttar Pradesh

(2013) 2 SCC 398], ruled that, a person whose case is

based on falsehood has no right to approach the

Court and he is not entitled to be heard on merits

and he can be thrown out at any stage of the

litigation. Therefore it would be just and proper to

hear C.A. No. 2939 of 2017 filed by respondent under

Section 340 Cr.P.C. before deciding the Writ Petition.

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Similar procedure is adopted by Full Bench of Supreme Court

in Sarvapalli Radhakrishnan University Vs. Union of India 2019 SCC

OnLine SC 51. where it is ruled as under;

A ) False affidavit and suppression by the

petitioner :- A litigant who indulges in

suppression of facts and misrepresentation

is not entitled for any relief.

We have appointed a Committee because The

conduct of the College in this case to

mislead this Court for the purpose of

getting a favourable order is reprehensible

and the College deserves to be dealt

withsuitably.

– It is offence under Section 193 of Indian Penal

Code. Prosecution ordered by Court.

Cost of Rs. 5 Crore is imposed on the petitioner.

Writ Petition dismissed.

Belated apology cannot be accepted when it is

used to escape the punishment.

The Committee constituted by this Court is due to

the vehemence with which the Counsels appearing

for the College were trying to convince us that

they are fully compliant with all the

requirements.

B) The brazen attempt by the College in taking

this Court for a ride by placing on record

manoeuvred documents to obtain a favourable

order is a clear-cut act of deceit. The justification

given by the College has turned out to be a

concocted story. Had we not initiated an enquiry

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by the Committee of Experts, the fraud played by

the College on this Court would not have come to

light. It is trite that every litigant has to approach

the Court with clean hands. A litigant who

indulges in suppression of facts and

misrepresentation is not entitled for any relief.

C) In Re. Suo Motu Proceedings against R.

Karuppan, Advocate (2001) 5 SCC 289, this Court

observed as under:

“13. Courts are entrusted with the powers of

dispensation and adjudication of justice of the

rival claims of the parties besides determining the

criminal liability of the offenders for offences

committed against the society. The courts are

further expected to do justice quickly and

impartially not being biased by any extraneous

considerations. Justice dispensation system would

be wrecked if statutory restrictions are not

imposed upon the litigants, who attempt to

mislead the court by filing and relying upon false

evidence particularly in cases, the adjudication of

which is dependent upon the statement of facts. If

the result of the proceedings are to be respected,

these issues before the courts must be resolved to

the extent possible in accordance with the truth.

The purity of proceedings of the court cannot be

permitted to be sullied by a party on frivolous,

vexatious or insufficient grounds or relying upon

false evidence inspired by extraneous

considerations or revengeful desire to harass or

spite his opponent. Sanctity of the affidavits has

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to be preserved and protected discouraging the

filing of irresponsible statements, without any

regard to accuracy.” (Para 12)

In Mohan Singh v. Amar Singh (1998) 6 SCC 686,

it was observed by this Court:

“36. …Tampering with the record of judicial

proceedings and filing of false affidavit in a court

of law has the tendency of causing obstruction in

the due course of justice. It undermines and

obstructs free flow of the unsoiled stream of

justice and aims at striking a blow at the rule of

law. The stream of justice has to be kept clear

and pure and no one can be permitted to take

liberties with it by soiling its purity.” (Para 13)

15. The brazen manner in which the College has

indulged in relying upon manipulated records to

mislead this Court for the purpose of getting

favourable order deserves to be dealt with in a

serious manner. We find that this is a fit case

where Mr. S.S. Kushwaha, Dean of the College

must be held liable for prosecution under Section

193 IPC.

E) For the aforementioned reasons, we pass the

following order:

(i) Mr. S.S. Kushwaha, Dean of the R.K.D.F.

Medical College Hospital and Research Centre i.e.

Petitioner No. 2-herein is liable for prosecution

under Section 193 IPC. The Secretary General of

this Court is directed to depute an Officer to

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 initiate the prosecution in a competent Court

having jurisdiction at Delhi.

(ii) The College is barred from making admissions

for the 1st Year MBBS course for the next two

years i.e. 2018-19 and 2019-2020.

(iii) A penalty of Rs. Five Crores is imposed on the

College for playing fraud on this Court. The

amount may be paid to the account of the

Supreme Court Legal Services Committee.

(iv) The students are entitled to receive the refund

of fee paid by them for admission to the College

for the academic year 2017-19. In addition, the

College is directed to pay a compensation of Rs.

One Lakh to the said students. (Para 19)

20. The Writ Petition is dismissed accordingly.

Supreme Court in M. Narayndas Vs. State (2003) 11 SCC 251, ruled

that the allegations by accused that the proceedings under Section 340

of Criminal Procedure Code are initiated by applicant for ulterior motive

or malafides cannot be a ground to drop the proceedings.

Indian Bar Association’s mission is to create such an atmosphere that

all should get fair & fast justice.

In many case poor and needy are being harassed by some legal eagles

and it is very difficult for a common man to afford good lawyers against

land and other mafias.

In many cases powerful wife or husband are dragging each others family

to Court and talent of the nation is being wasted in unwarranted, false

and frivolous litigation.

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If Court start conducting enquiry Under Section 340 of Criminal

Procedure Code and take action against the frivolous litigants then the

mischievous litigants will be deterred and precious time of the Courts

can be used in deserving good causes and cases.

Through some Judges due to lack of knowledge or corrupt motive or

some unknown reasons are not following this procedure or following this

procedure in few cases of their choice for ulterior reasons.

The summary of almost all judgments is given in Sanjeev Mittal Vs.

State 2011 (121) DRJ 328 & New Delhi Municipal Council Vs. M/S

Prominent Hotels Limited 2015 SCC Online Del 11910. Where it is

also ruled that once any law is settled by High Court or Supreme Court

then any party cannot be allowed to take plea against said law and if

done then it will be contempt. Same is applicable to Judges also.

Hon’ble High Court in the case of Sanjeev Kumar Mittal Vs. State2011

(121) DRJ 328 it is held as under ;

6.3. In Padmawati and Ors v. Harijan Sewak Sangh,

154 (2008) DLT 411, the learned Single Judge of this

Court (S.N. Dhingra, J.) noted as under:

“6. The case at hand shows that frivolous defences and

frivolous litigation is a calculated venture involving no

risks situation. You have only to engage professionals to

prolong the litigation so as to deprive the rights of a

person and enjoy the fruits of illegalities. I consider that

in such cases where Court finds that using the Courts

as a tool, a litigant has perpetuated illegalities or has

perpetuated an illegal possession, the Court must

impose costs on such litigants which should be equal to

the benefits derived by the litigant and harm and

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deprivation suffered by the rightful person so as to

check the frivolous litigation and prevent the people

from reaping a rich harvest of illegal acts through the

Courts. One of the aim of every judicial system has to

be to discourage unjust enrichment using Courts as a

tool. The costs imposed by the Courts must in all cases

should be the real costs equal to deprivation suffered by

the rightful person. . Before parting with this case, I

consider it necessary to pen down that one of the

reasons for over-flowing of court dockets is the frivolous

litigation in which the Courts are engaged by the

litigants and which is dragged as long as possible.

Even if these litigants ultimately loose the lis, they

become the real victors and have the last laugh. This

class of people who perpetuate illegal acts by obtaining

stays and injunctions from the Courts must be made to

pay the sufferer not only the entire illegal gains made

by them as costs to the person deprived of his right and

also must be burdened with exemplary costs. Faith of

people in judiciary can only be sustained if the persons

on the right side of the law do not feel that even if they

keep fighting for justice in the Court and ultimately win,

they would turn out to be a fool since winning a case

after 20 or 30 years would make wrong doer as real

gainer, who had reaped the benefits for all those years.

Thus, it becomes the duty of the Courts to see that such

wrong doers are discouraged at every step and even if

they succeed in prolonging the litigation due to their

money power, ultimately they must suffer the costs of

all these years long litigation. Despite settled legal

positions, the obvious wrong doers, use one after

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 another tier of judicial review mechanism as a gamble,

knowing fully well that dice is always loaded in their

favour, since even if they lose, the time gained is the

real gain. This situation must be redeemed by the

Courts.The Court imposed costs of `15.1 lakhs. Against

this, Special Leave to Appeal (Civil) No 29197/2008

was preferred to the Supreme Court. On 19.03.2010,

the Hon'ble Supreme Court passed the following order:

We have heard learned counsel appearing for the

parties. We find no ground to interfere with the well-

considered judgment passed by the High Court. The

Special Leave Petition is, accordingly, dismissed.”

6.4. I agree with the findings by the learned Judge in

Padmawati's case (supra) and I would wish to add a few

words. There is another feature which has been

observed and it is of unscrupulous persons filing false

claims or defences with a view that the other person

would get tired and would then agree to compromise

with him by giving up some right or paying some

money. If the other party is not able to continue

contesting the case or the Court by reason of falsehood

falls into an error, the wrong succeeds. Many times, the

other party compromises, or at other times, he may

continue to fight it out. But as far as the party in the

wrong is concerned, as this Court noted in Padmawati's

case (supra), even if these litigants ultimately lose the

lis, they become the real victors and have the last

laugh.

6.5. Padmawati's case (supra) was one where the

wrongdoer was holding up delivery of possession. The

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present case, another species of the same genus, is

where a party puts forward a false claim in order to

entangle someone else's property in the hope that he

can, with court delays and the needs of the other, one

day, extract money for withdrawing the claim. The

manner, in which the case has been presented, and

proceeded with, gives a clear impression that it is of

this type.

6.12. In fact, restitution, which includes compensation,

and levy of costs, is not sufficient where there is, in the

pleadings before the Court, falsehood, concealment or

reliance upon forged documents. There it also calls for

triggering into motion the penal laws, i.e., making of a

complaint under Section 340 Cr.P.C. The more

important part is of punishment to prevent, in the first

instance, litigants from making false averments before

a court of law. While the punishment prescribed by law

is deterrent, the probability of prosecution, and

thereafter conviction, should also be sufficient to deter

such conduct.

6.13. A party, whether he is a petitioner or a

respondent, or a witness, has to respect the solemnity

of the proceedings in the court and he cannot play with

the courts and pollute the stream of justice. It is cases

like this, with false claims (or false defences) which

load the courts, cause delays, consume judicial time

and bring a bad name to the judicial system. This case

is a sample where the facts are glaring. Even if they

were not so glaring, once falsehood is apparent, to not

take action would be improper.

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 6.14. The judicial system has a right and a duty to

protect itself from such conduct by the litigants and to

ensure that where such conduct has taken place, the

matter is investigated and reaches its logical

conclusion and depending on the finding which is

returned in such proceedings, appropriate punishment

is meted out.

All are requested to use provisions of Section 340 of Criminal Procedure

Code against mischievous litigants. But, at the same time you are also

requested to not to misuse this provision in undeserving cases.

Hope this mission will bring a expected change in the Indian Judicial

System.

Date: 22/02/2019

Place: Mumbai

__________________

Adv. Vijay S. Kurle

Maharashtra State President

INDIAN BAR ASSOCIATION

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